Amputee requiring guidance in unfamiliar places

Client lost leg as child, uses prosthesis and/or crutches, states has problems getting around in unfamiliar places as regularly falls over, therefore needs support and assistance to ensure safety. ESA been refused, 0 points, client appealed.

DWP submission states that problems with descriptor 15 cannot be considered as no mental health problem reported, yet my reading of Bonner commentary is that is completely by the by. Unless the descriptors in part 2 of sch.2 specify otherwise, claimants can score points under any relevant descriptors provided there is evidence of physical or mental health problem.

Do the wise people of rightsnet concur? We should be able to make the case on part 1 descriptors alone anyway, but am loathe to leave out something which I think sounds perfectly reasonable.

As an aside, client has indefinite award of HRC/HRM DLA, so score of 0 points seems preposterous anyway.

That was the position.  Unfortunately the government changed the law to state that mental health descriptors can only be applied where the claimant is suffering from some specified mental disablement or illness.  Ditto with the physical descriptors.

Cheers Paul, I did suspect things might have changed subsequently.

Ok, so been doing some reading up on the January 2013 changes (was otherwise distracted at the time). In terms of the amendments to reg 19 and the new wording:

(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if—

(a) fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be,
(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.

Client has prosthesis but rarely wears due to significant discomfort, so prefers to use elbow crutches. Client confirms that whilst wearing elbow crutches, they cannot put something in top pocket of jacket. Only option would be to take elbow out of crutch and try to balance whilst doing so, which leads to increased risk of falling.

I’m thinking of running argument that they therefore also satisfy descriptor 3 and score 15 points, on basis that they cannot safely, reliably, nor repeatedly undertake this activity. Any views?

Paul_Treloar - 21 November 2013 01:17 PM

Ok, so been doing some reading up on the January 2013 changes (was otherwise distracted at the time). In terms of the amendments to reg 19 and the new wording:

(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if—

(a) fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be,
(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.

Client has prosthesis but rarely wears due to significant discomfort, so prefers to use elbow crutches. Client confirms that whilst wearing elbow crutches, they cannot put something in top pocket of jacket. Only option would be to take elbow out of crutch and try to balance whilst doing so, which leads to increased risk of falling.

I’m thinking of running argument that they therefore also satisfy descriptor 3 and score 15 points, on basis that they cannot safely, reliably, nor repeatedly undertake this activity. Any views?

The counter agrument would be that you are reading an additional test into descriptor 3 of ‘cannot raise either arm WHILST STANDING….’. I’ve a nasty suspcion that that argument would clinch it…..

Yes, that’s what made me slightly doubtful Paul.

However, the Bonner commentary does mention an implication of stretching to reach, and stretching from a sitting position wouldn’t really help with getting something from a shelf.

Maybe simply should aim for 3(c) and 6 points as this is that’s the only strand that specifically mentions reaching?

My first thought was that it was implicit in 19(4) that the aid or appliance was one which would assist the person to do the activity under consideration, eg reaching, rather than make things more difficult.  But I don’t think it is.  I think Reg 19(4) takes the person as it finds them so that if they do use crutches then they should be assessed using them for all of the physical activities.  But I suspect the argument will fail on the basis that the requisite reaching could be done with reasonable regularity sitting down.  If that were not the case then he could, I imagine, equally score 15pts for not being able to pick up a coin under the manual dexterity activity.

Edit: The important words in descriptor 3(c) I think Paul are “as if” to reach for something, which don’t actually require you to reach for anything real.  It’s the functional ability to get an arm above your head which is being tested I think.  Still, good luck.

I suppose that’s where part of the difference is though Tom.

Client says they can pick things up and move them whilst using crutches (albeit slightly clumsily) and has sufficient manual dexterity to pick up a coin (again with some difficulty), whereas the reaching one just doesn’t make sense if it’s solely predicated on reaching from whatever position someone is able to maintain i.e. taken to it’s logical conclusion, someone who could only lie flat would still score 0 points if they could reach above their head.

In fact, someone who could only lie down could probably do the activity more easily than many people could from sitting or standing, if that makes sense? Does any of the WCA make sense anymore is probably the bigger question….

<edited to remove gender>

Actually, he may have a chance of 6pts for reaching.  If reasonable regularity requires being able to perform the descriptor “when called upon to do so” or most of the time then I suppose you couldn’t guarantee a seat, somewhere to lie down even, would always be available.  I feel like lying down on the job, raising my arms above my head and banging my clenched fists on the floor when listening to certain tribunal doctors at times.